United States District Court, Central District of Illinois, Springfield Division
March 20, 2002
LESLIE DUNCAN, AS PERSONAL REPRESENTATIVE FOR THE DECEDENT DAVID DUNCAN, PLAINTIFF,
UNION PACIFIC RAILROAD COMPANY, DEFENDANT. UNION PACIFIC RAILROAD COMPANY, DEFENDANT/THIRD PARTY PLAINTIFF, V. AIRPORT INN, CFR, INC. THIRD PARTY DEFENDANT.
The opinion of the court was delivered by: Jeanne E. Scott, United States District Judge
This matter comes before the Court on Defendant Union Pacific
Railroad's (Union Pacific) Motion for Summary Judgment (d/e 15) and
Defendant Union Pacific's Request for a Hearing on the Motion for Summary
Judgment (d/e 17). The Court has determined that a hearing is not
necessary in this case since the issues have been well briefed.
Therefore, Union Pacific's request for a hearing is denied. Decedent
David Duncan was not acting as Union Pacific's employee at the time the
accident occurred; therefore, he is not entitled to recovery under the
Federal Employers Liability Act (FELA). 45 U.S.C. § 51. Union
Pacific's Motion for Summary Judgment is therefore allowed.
Leslie Duncan is David Duncan's widow and is bringing this action as
David Duncan's (Duncan) personal representative. At the time of his
death, Duncan was employed as a welder in the Maintenance of Way
Department of Union Pacific. In this job, Duncan worked as a member of
Gang # 9114. This gang was responsible for maintaining and repairing
Union Pacific's track, rails and adjoining structures. Duncan was
employed as a member of a mobile gang, which meant that he was required
to report to various locations for work, depending on where his gang was
scheduled. Duncan's permanent home was in Lincoln, Illinois, but his
geographical work area included Missouri, Arkansas, Louisiana, Kansas and
Texas. Duncan's job consequently required him to travel and spend many
nights away from home.
At the time Duncan was employed by Union Pacific, Union Pacific had a
collective bargaining agreement with the Brotherhood of Maintenance of
Way Employees. Ex. 4. As a Maintenance of Way employee, Duncan was
subject to this agreement. This agreement provided that Maintenance of
Way employees would receive a per diem for meals and lodging while
working away from their permanent residence if meals and lodging were not
provided by the railroad. The agreement did not state that employees had
to stay at particular hotels or motels. Union Pacific did not provide
Duncan with meals and lodging. Instead, it paid Duncan $37.00 each day
in per diem expenses.
On Thursday, July 10, 1997, Duncan was working in Camden, Arkansas.
His gang was working eight hour shifts, five days each week. Duncan w as
scheduled to work Monday through Friday of that week. While he worked in
Camden, Arkansas, Duncan stayed at the Airport Inn near Camden. He
checked in on July 8,
1997. Union Pacific did not select the Airport Inn
as lodging, nor did it recommend that Duncan stay at the Airport Inn
while in Camden. Duncan could have stayed at any lodging that he
selected. Justin McGowan, the supervisor of Gang #9114, stated that he
knew that Duncan was staying at the Airport Inn but that he did not know
why Duncan chose that particular motel. For several months prior to July
10th, Duncan had roomed with Javier Garcia, a welder's assistant on Gang
# 9114. Duncan roomed with Garcia at the Airport Inn, beginning on July
Garcia stated that on July 10, 1997, the gang got off work at about
3:30 p.m. Duncan and Garcia went back to the Airport Inn. Garcia also
said that it was a very hot day so he went to the motel room to take a
shower. Duncan told Garcia that he was going to the motel swimming
pool. After taking a shower, Garcia went to the pool and found that
Duncan had drowned. Duncan had previously told Garcia that he could not
swim. Duncan's wife also indicated that he could not swim.
In her Complaint, Plaintiff alleges that at all times while Duncan
stayed at the Airport Inn, the Airport Inn was Union Pacific's agent.
Plaintiff contends that Duncan's injuries and death were caused by the
negligent acts of Union Pacific and its agents because they:
(a) Failed to provide decedent with a reasonable safe
place to work; or
(b) Failed to provide reasonably safe conditions for work; or
(c) Failed to furnish decedent with sufficient help; or
(d) Failed to properly protect its employees from the
dangerous condition of the pool; or
(e) Failed to provide proper warnings of the
dangerous condition of the pool; or
(f) Failed to provide decedent with a safe place to
lodge in that the pool was defective and failed
to meet industry standards or guidelines; or
(g) Failed to provide decedent with a safe place to
lodge in that the pool was defective in that it
failed to have a safety line, failed to have a
rope dividing the deep and shallow ends, failed
to properly mark the deep end of the pool,
improperly marked the pool depths, failed to
provide life saving equipment, failed to have
clean water in its pool, contained an improper
slope from the shallow to the deep end, failed to
have adequate and safe surfaces on the pool
(h) Failed to provide safe lodging for decedent.
Compl. ¶ 14.
STANDARD OF REVIEW
At summary judgment, the moving party must present evidence which
demonstrates the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The Court must consider
the evidence presented in the light most favorable to the non-moving
party. Any doubt as to the existence of a genuine issue for trial is
resolved against the moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). Once the moving party has produced evidence
showing that he is entitled to summary judgment, the non-moving party
must present evidence to show that issues of fact remain. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 576 (1986).
Union Pacific has demonstrated that there are no issues of material
fact regarding Plaintiff's claim. Union Pacific has produced evidence
demonstrating that Duncan was not acting within the scope of
employment at the time he drowned. Plaintiff has not satisfied her
burden to produce evidence showing that there are issues of fact
remaining regarding whether Duncan was acting within the scope of his
employment. Therefore, Union Pacific's Motion for Summary Judgment is
The Federal Employers Liability Act (FELA) provides a broad remedial
scheme for railroad employees injured by their employer's negligence.
Lisek v. Norfolk & Western Ry. Co., 30 F.3d 823, 831 (7th Cir. 1994).
FELA states that railroads operating in interstate commerce
shall be liable in damages to any person suffering
injury while he is employed by such carrier in such
commerce . . . for such injury or death resulting in
whole or in part from the negligence of any of the
officers, agents, or employees of such carrier, or by
reason of any defect or insufficiency due to its
negligence, in its cars, engines, appliances,
machinery, track, roadbed, works, boats, wharves, or
45 U.S.C. § 51.
For Union Pacific to be held liable under FELA, Plaintiff must
demonstrate that Duncan was acting within the scope of his employment
when he drowned. Rogers v. Chicago & N.W. Trans. Co., 947 F.2d 837, 838
(7th Cir. 1991). The Court must apply common law principles, as
determined by federal courts, to decide whether Duncan was acting within
the scope of his employment. Wilson v. Chicago, Milwaukee, St. Paul, &
Pacific R. Co., 841 F.2d 1347, 1352 (7th Cir. 1988). The Seventh Circuit
has applied the Restatement Second of Agency, which states that "[t]o be
within the scope of the employment, conduct must be of the same general
nature as that authorized, or incidental to the conduct authorized [by
the employer]." Rogers, 947 F.2d at 840 (citing Restatement 2d of Agency
§ 229 (1957)).
When Duncan drowned, his work for the day had been completed, and he
was engaged in a purely private activity by going to the swimming pool.
There is no evidence that Duncan's going to the swimming pool was in any
way authorized or incidental to conduct authorized by Union Pacific in
the scope of Duncan's employment. It did not further the employer's
needs. When an employee is engaged in a purely private activity that is
not necessary or incidental to his employment duties, that employee is
not acting within the scope of his employment. Id. at 838-39.
In her response to Union Pacific's Motion for Summary Judgment,
Plaintiff cites several cases indicating that an employer may still be
held liable under FELA for injuries occurring outside of a workplace's
geographical location. However, in each of these cases, the employee was
in some way required by the employer to stay at a particular lodging
establishment. In Empey v. Grand Trunk Western Railroad Co., 869 F.2d 293,
296 (6th Cir. 1989), an employee was able to recover under FELA when he
slipped and fell after water accumulated on the tile floor where he was
staying. Although the employer did not require the plaintiff to stay at
that particular lodging, it was the only lodging for which the employer
would pay, and the employer was therefore liable. Id. at 295-96. The
Court held that in those circumstances, the employer had implicitly
required the plaintiff to stay at that establishment. Id. In Carney v.
Pittsburgh & Lake Erie Railroad Co., 316 F.2d 277, 282 (3d Cir. 1963), an
employee fell out of a negligently maintained bed and sued his employer
under FELA. The employer was held liable because he had encouraged
employees to stay at that particular
establishment. Id. Additionally, in
Mostyn v. Deleware L. & W.R. Co., 160 F.2d 15 (2d Cir. 1947), an employer
had contracted with an independent contractor for meals and lodging for
employees. The employer was liable under FELA for injuries sustained
while an employee was sleeping outside because the lodging conditions
were so poorly maintained. Id. at 17-18.
Each of these cases is distinguishable from the situation at hand. The
employers in Empey, Carney, and Mostyn provided the plaintiff-employees
with lodging at a particular establishment, either implicitly or
explicitly. The lodging establishment became the employer's agent,
therefore. In Duncan's situation, Union Pacific did not recommend or
require that employees stay in any particular hotel or motel. In fact,
employees received their per diem amount no matter where they stayed.
Duncan chose to stay at the Airport Inn when he worked in Camden,
Arkansas. Other employees stayed elsewhere, or even in their vehicles,
and received the per diem. Plaintiff has not demonstrated any evidence
that Union Pacific recommended or required, implicitly or explicitly,
that Duncan or other workers stay at this particular motel. Plaintiff
has not provided any evidence supporting her claim that the Airport Inn
acted as Union Pacific's agent.
These cases are also distinguishable from the situation at hand for
another reason. Each case involved an activity performed by the employee
that was essential to acceptable work performance. The Seventh Circuit
has distinguished activities which are essential to acceptable work
performance, such as eating and sleeping, from purely private activities.
Rogers, 947 F.2d at 839-40. Going to the pool was neither incident to a
day's work nor essential to acceptable work performance; it was a purely
private activity. Swimming, or use of a swimming pool for any other
reason, had no direct relationship to Duncan's ability to perform his
work as a welder maintaining tracks, rails, and adjoining structures for
Union Pacific. Use of a swimming pool was also not a necessary incident
of executing the duties of a welder.
Plaintiff also asserts that whether Duncan was acting within the scope
of his employment is a question of fact that should be submitted to the
jury. When there are no material facts at issue which could establish
that Duncan was acting within the scope of his employment, however,
summary judgment is appropriate. Id. at 840. Union Pacific has
demonstrated that Airport Inn did not act on Union Pacific's behalf.
Union Pacific did not recommend or require that Duncan stay at any
particular lodging when he traveled for his job. Additionally, Union
Pacific has demonstrated that Duncan's going to the swimming pool after
work was a private activity that was not incidental to Duncan's
employment. Although it is unclear exactly what happened to cause Duncan
to drown, there is no issue of fact relating to whether Duncan was acting
within the scope of his employment. All of the evidence demonstrates
that Duncan was not acting within the scope of his employment.
Therefore, summary judgment must be granted in favor of Union Pacific.
For the reasons stated above, Union Pacific's request for a hearing on
it's Motion for Summary Judgment (d/e 17) is DENIED. Union Pacific's
Motion for Summary Judgment (d/e 15) is ALLOWED. This case is closed.
IT IS THEREFORE SO ORDERED.
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